BROWN v. ESMOR CORRECTIONAL SERVICES

The opinion of the court was delivered by: DICKINSON DEBEVOISE, Senior District Judge

OPINION

This is a class action instituted by plaintiffs, undocumented
aliens who were detainees at a facility (the "Facility") which
defendant, Esmor Correctional Services, Inc., ("Esmor") operated
under contract with the Immigration and Naturalization Service
("INS") at Elizabeth, New Jersey from August 1994 until mid-June
1995. These detainees numbered approximately 1,600 persons.
Presently before the court are the parties' application for
approval of the Settlement Agreement, plaintiffs' application for
approval of a Plan of Allocation of the settlement fund, and the
application of Class Counsel for reimbursement of expenses and
payment of attorneys' fees.

I. Background Plaintiffs allege that while they were detainees at the
Facility they were tortured, beaten, harassed and otherwise
mistreated by Esmor guards and that they were subjected to
abysmal living conditions including inadequate sanitation,
exercise and medical treatment. The details of the allegations
and of the proceedings are set forth in Jama v. U.S.I.N.S.,
334 F. Supp. 2d 662 (D.N.J. 2004).

Class Counsel filed the original complaint in this action in
the Supreme Court of the State of New York. On April 19, 1996
Esmor removed the action to the United States District Court for
the Southern District of New York. Class Counsel filed a motion
to certify the class, after which discovery proceeded on the
merits and on the issue of class certification. Esmor opposed
class certification. Before the certification motion was decided,
on March 11, 1998 the district court for the Southern District of
New York transferred the action to this district. There were then
pending in this court two other actions in which individual
plaintiff-detainees sought recovery for abuses suffered by them
during the period of detention  the Jama Action and the
DaSilva Action.

On April 2, 1998 Class Counsel filed an amended complaint and
moved again for class certification. The court granted the motion
and by order dated March 10, 1999 approved the form of notice to
be sent to class members. The Class comprises all persons or
entities who resided at the Elizabeth Detention Facility in
Elizabeth, New Jersey, from on or about August 1, 1994 and June
18, 1995, inclusive of those dates. Excluded from the Class are
those Members who submitted valid and timely requests for
exclusion from the Class in accordance with the procedures set
forth in an order dated March 9, 1999, as amended by an order
dated June 19, 2003. The amended order is currently on appeal
before the United States Court of Appeals for the Third Circuit (Nos. 03-3095, 03-3096, and 03-3348).

Class Counsel undertook the difficult task of attempting to
locate the former inmates of the Facility, all of whom had either
been released, relocated to other facilities in the United States
or deported. They were able to identify and locate approximately
1,180 detainees and mailed notices to them and/or their
attorneys.

The magistrate judge in charge of pretrial proceedings
consolidated the Brown Action with the Jama and DaSilva
actions for the purposes of discovery. This had the unintended
effect of complicating discovery and making it more time
consuming, involving multiple examinations of witnesses, motions
to compel and motions for protective orders. The Jama
plaintiffs had sued a large number of defendants. The depositions
of Brown plaintiffs involved 17 witnesses and consumed 24 days;
the depositions of Jama plaintiffs involved 4 witnesses and
took 20 days; the depositions of Esmor, INS, Esmor officers and
guards involved 26 witnesses and took 117 days. These deposition
were conducted during a four-year period in a number of cities
across the United States. In addition to depositions, document
production proceeded on a massive scale.

Failure of plaintiffs in the Jama and DaSilva Actions to
opt-out of this action in accordance with the March 9, 1999 order
resulted in extensive proceedings before two magistrate judges
and this court. On June 10, 2003 the court entered an order
extending the time within which the plaintiffs in those cases
could opt-out. Nine Jama plaintiffs filed opt-outs within the
extended deadline; none of the DaSilva plaintiffs did so. As a
result all of the original Jama Action plaintiffs other than
those nine and all of the DaSilva Action plaintiffs are members
of the Class. The status of the nine opt-outs is in doubt because
of the appeal of the order extending the time to opt-out. Because of the lapse of time since the inception of the case,
during the summer of 2003 the court directed that a supplemental
mail notice be sent to detainees at the Facility whose directly
mailed Class action notices mailed in April 1999 were not
returned as undeliverable and to the attorneys to whom class
action notices were sent on April 19, 1999 and not returned. Such
notices were mailed to more than 576 detainees and/or their
attorneys and, of those mailings, 456 were deliverable.

Esmor filed a motion for summary judgment dismissing the Jama
Action on January 23, 2003. The INS and INS officials, the Esmor
officers and Esmor guards filed similar motions for summary
judgment. Certain of the key legal issues raised in those motions
for summary judgment were critical to the outcome of this action,
and consequently on June 26, 2003 the court directed that Esmor
file its motion for summary judgment against the plaintiffs in
this case by September 30, 2003 and further directed that
consideration of common issues of law would be argued at a
consolidated hearing.

Esmor filed its motion for summary judgment in this action.
Class Counsel were required to review and analyze the enormous
record which included thousands of pages of deposition
transcripts and thousands of pages of documents produced during
discovery. Oral arguments on all the motions for summary judgment
were conducted on June 29 and June 30, 2004. The key issues
raised affecting this action were i) whether the INS Interim
Report (which severely criticized Esmor's operation of the
Facility) was admissible under Rule 803(c) of the Federal Rules
of Evidence, ii) whether the plaintiffs had presented sufficient
evidence of negligent hiring, retention, training and/or
supervision to defeat the motion for summary judgment, iii)
whether Esmor could avail itself of the government contract
defense and iv) whether plaintiffs were third party beneficiaries of the contract between Esmor and the INS
governing operation of the Facility.

On September 9, 2004 the court rendered its decision on the
summary judgment motion in this action. It ruled in plaintiffs'
favor on issues i), ii) and iii) and in Esmor's favor on issue
iv). Jama v. INS, 334 F. Supp. 2d 662 (D.N.J. 2004). In
addition the court deconsolidated this case from the Jama and
DaSilva Actions, noting that "[t]he Brown case is now ready
to proceed to a final pretrial conference, a settlement
conference, and, if no settlement is reached, a trial." The court
denied an Esmor motion for a stay of settlement and/or trial
pending the outcome of its appeal contesting whether the Jama
plaintiffs had properly opted out of this class action.

With the case in this posture Class Counsel made extensive
preparations for a settlement conference, analyzing the data,
researching possible damages theories and awards and preparing
memoranda. Settlement conferences were held with the court and on
February 17, 2005 a settlement was agreed upon. On May 24, 2005
the court issued an Order Preliminarily Approving Settlement and
Approving Form and Manner of Notice.

II. The Settlement Terms

Under the Settlement Esmor shall pay $2.5 million on the
Settlement Effective Date into an escrow account (the "Settlement
Fund") controlled by Class Counsel, Ressler & Ressler. This
payment will constitute the settlement of all claims relating to
the operation of the Facility against Esmor and all of its
current officers, directors, employees, agents, accountants,
attorneys and other related parties. The fees and expenses of
Ressler & Ressler, as approved by the Court will be paid from the
Settlement Fund. The notice to class members of the hearing on
the proposed settlement advised the recipients that the attorneys
have made application for reimbursement of costs and expenses of $200,000 and for fees in
the amount of $766,667, being 1/3 of the gross amount of the
settlement. Thus the amount to be distributed to the class
members will be $1,533,338 (the "Distribution Fund").

The kinds of injuries that the various members of the Class
suffered varied. Some, perhaps most, may only have had to endure
the general conditions of the Facility at the particular time
during which they were there; some may have undergone for a
period of days or weeks the more onerous conditions of solitary
confinement; some may have been physically assaulted or sexually
harassed; some may have undergone body cavity searches; some may
have been subjected to unjustified searches by Esmor's ERT Team;
some may have been injured during the Esmor uprising that took
place on June 18, 1995. In short different members of the Class
suffered different kinds of injuries.

Another unknown factor is the number of inmates who may be
located so that they can share in the Settlement Fund. Pursuant
to the Settlement Agreement Class Counsel have devised a Plan of
Allocation which must be approved by the court. Each Class member
is required to submit a Proof of Claim and Release which, among
other things, requires the Class Member to specify the amount of
time and dates spent at the Facility and the specifics of each
kind of injury he or she suffered at the Facility. The Plan of
Allocation allocates a certain number of units to each kind of
injury. For example for each day spent at the Facility a detainee
is awarded one unit, for a digital body search a detainee is
award 15 units; for a beating by an Esmor guard a detainee is
awarded 30 units per incident.

The Plan Administrator (Ressler & Ressler) will evaluate each
claim and compute the total number of units to be credited to
each claimant and the total number of units of all claimants. To obtain the value of each unit, the total number of
units will be divided into the fund to be distributed. To
determine the award of each claimant, his or her total number of
units will be multiplied by the value of each unit. The value of
each unit, of course, will depend in part upon the number of
former detainees who can be located and who file claims. The bar
date for filing Proof of Claim Forms is November 10, 2005.

The Settlement requires Ressler & Ressler to mail a notice of
hearing to each Class Member who can be identified through
reasonable effort and to give notice by publication on the
Internet, in at least one national newspaper and in at least two
ethnic newspapers. The mailed Notice of Hearing, among other
things, informed members of the Class of the pendency of the
application to approve the Settlement, described the terms of the
Settlement and advised them of their opportunity to object and be
heard at the hearing scheduled to consider its fairness,
reasonableness and adequacy. Similarly the Settlement Agreement
required Ressler and Ressler to mail a Proof of Claim Form and
Release and a Description of the Plan of Allocation to each Class
Member who can be identified through reasonable effort.

The notice to Class Members meets the notice requirements of
Fed.R.Civ.P. 23(e) as the best notice practicable under the
circumstances of this case. Girsh v. Jepson, 521 F.2d 153 (3d
Cir. 1975).

Carmen E. Mendiola, Esq., counsel for the detainees who are the
former DaSilva plaintiffs, filed objections on their behalf,
challenging the fairness, reasonableness and adequacy of the
Settlement Agreement.

Counsel for the nine Jama plaintiffs who, this court found,
successfully opted out, moved to intervene in the Brown Action
for the purposes of the hearing on the Settlement Agreement, objected to provisions of the Settlement Agreement that they
contend improperly limit the ability of the Jama plaintiffs to
reach a settlement of the Jama Action, and seek to address
amicus curiae one of the Settlement Agreement provisions. The
court granted the motion to intervene, holding that the
possibility that the Court of Appeals might rule that the Jama
plaintiffs' opt-out was ineffective thus making them members of
the Class gave them standing to intervene.

The DaSilva and Jama plaintiffs' positions will be
addressed in separate sections of this opinion.

III. Fairness, Reasonableness and Adequacy

The fairness, reasonableness and adequacy of the Settlement
Agreement is supported by the prevailing circumstances.
Settlement of disputed claims, especially those advanced in
complex class action litigation, are favored by the courts. The
Court of Appeals affords an initial procedural presumption of
fairness of a settlement if adequate notice was given to affected
members of the proposed settlement class and "if the court finds
that (1) the negotiations occurred at arm's length; (2) there was
sufficient discovery; (3) the proponents of the settlement are
experienced in similar litigation; and (4) only a small fraction
of ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.